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Will COVID-19 lockdown put Canadian 'civil liberties in jeopardy'?

Last Updated Mar 23, 2020 at 7:42 pm PDT

The Canadian Charter of Rights and Freedoms allows for "reasonable limits." (Kelvin Gawley, NEWS 1130 photo)
Summary

Would a shelter-in-place order from the prime minster put our rights and freedoms at risk?

'We will not view it as an assault on our civil liberties,' former Conservative leader says

The definition of 'reasonable limits' on rights can shift during a crisis, professor says

VANCOUVER (NEWS 1130) – In her 30 years of planning pandemic responses, Dr. Bonnie Henry never expected she would have to go this far – banning mass gatherings, closing schools and urging everyone to follow social distancing protocols.

B.C.’s provincial health officer admitted on Monday these are “very strict measures” she “never actually thought [she] would ever implement.”

“But we’ve seen the devastation that this virus can have on our communities and on our families and these are the measures that we need now,” Henry said.

Are civil liberties under threat?

The question is now: What measures come next?

And should Canadians be concerned after federal Health Minister Patty Hajdu said on Saturday the spread of the novel coronavirus could “put our civil liberties in jeopardy“?

Canadian officials have so far stopped short of issuing shelter-in-place orders requiring people to stay home except for “essential” trips such as grocery shopping and medical appointments.

California, France and Italy have already issued such orders and Canada may not be far behind.

Former interim Conservative Leader Rona Ambrose urged Prime Minister Justin Trudeau to declare a state of emergency and order most Canadians to stay home.

“We will not view it as an assault on our civil liberties, we will see it as assault on COVID-19,” she said on Twitter.

Shifting the ‘reasonable limits’ on your rights

Stewart Prest, a political science professor at Simon Fraser University, said a full lockdown shouldn’t necessarily be considered a violation of the Canadian Charter of Rights and Freedoms, whose first clause allows for “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The definition of a reasonable limit can shift during a crisis, he said.

“In a situation like this, we have a significant threat to the lives of a large number of Canadians and a threat to the Canadian economy as a whole,” Prest said. “In order to safeguard those fundamental rights – rights of security of the person and health and so on – the government may feel it’s necessary to restrain some of these other rights.”

The key, Prest said, is that emergency powers are temporary – but that’s not always the case.

Sometimes a crisis can open the door to a loosening of safeguards that become permanent, he said.

After the 9/11 terrorist attacks, the U.S. Congress passed the Patriot Act, which expanded law enforcement powers but was criticized as violating constitutional rights. While many aspects of the act have since been rescinded, others remain nearly 20 years later, Prest noted.

“The one risk here is that the more people feel directly threatened, the more they are likely to accept greater constraints on other freedoms,” he said.

Special powers can be scrutinized

While B.C. has declared an emergency, Ottawa has yet to follow suit.

If Trudeau invokes the Emergencies Act, it would be the first time since the legislation replaced the War Measures Act which was last used during the 1970 October Crisis in Quebec and before that during the Second World War.

If the federal cabinet chooses to declare an emergency to give it more power to enforce “stay at home” edicts, it will need to bring a motion to the House of Commons within seven sitting days, Pres said.

The good news, he said, is the current minority Parliament will give opposition parties more opportunity to scrutinize the reasoning behind the decision.

“It’s going to have to be a broad cross-section of Canada’s representatives who are saying, ‘Yes, this an appropriate response.’ ”